DOL Home > OALJ > Whistleblower > McFarland v. City of New Franklin, Missouri, 86-SDW-1 (Sec'y July 17, 1990) |
SECRETARY OF LABOR
WASHINGTON, D.C.
DATE: July 17, 1990
CASE NO. 86-SDW-00001
IN THE MATTER OF
FRED AND JOYCE MCFARLAND,
COMPLAINANTS,
v.
CITY OF NEW FRANKLIN, MISSOURI,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
By order of August 9, 1989, I directed the parties to show cause why review of this case should not proceed in accordance with 29 C.F.R. § 24.6 (1989). Complainants responded indicating their agreement that this case be reviewed under Section 24.6, and requesting that the Recommended Decision and order (R.D. and O.) of Administrative Law Judge (ALJ) Robert D. Mills, issued on September 26, 1986, be affirmed. Complaints' Response to Show Cause Order, August 28, 1989. Respondent, however, objects to any further proceedings in this case.1 Rather, Respondent requests that the complaint in this case be declared as resolved since, in Respondent's view, Respondent has complied with the ALJ's decision and considers the matter moot. Respondent's Reply to Order to Show Cause, August 28, 1989.
I reject Respondent's request. As noted in the Show Cause Order, the ALJ's R.D. and O. is only a recommended decision. Under the regulations governing complaints filed, as in this case, pursuant to the Safe Drinking Water Act, 42 U.S.C. § 300 j-9(i) (1982), the ALJ's recommended decision must be forwarded to me for review and the issuance of a final order. See 29 C.F.R. § 24.6(a) (1989). See also, Milewski v. Kansas Gas Electric Co., Case No. 85-ERA-0021, Sec. Order Denying Motion for
Reconsideration and to Dismiss, issued Apr. 23, 1990, slip op. at 3; Nunn v. Duke Power Company, Case No. 84-ERA-27, Sec. Order of Dismissal, issued Sept. 29, 1989, at 1, n.1; Parks v. Bechtel North American Power Corp., Case No. 83-ERA-8, Sec. Order Approving Settlement, issued Jan. 12, 1988 at 1, n.1. The ALJ's order, therefore, is without finality. Since the final order must be based on the entire record, 29 C.F.R. § 24.6(b), which includes not only the ALJ's recommended decision but the complaint, hearing transcript, exhibits submitted, all pleadings and motions and any other contents of the record, Polydorou v. A.J. Clarke Management Corp., Case No. 88-CAA-00007, Sec. Order Regarding Settlement Agreement, issued August 3, 1989, at 2, n.2, the review of an ALJ's decision is de novo. That Respondent may have voluntarily complied with the ALJ's recommendation does not abrogate these requirements for review of the ALJ's decision and the issuance of a final order. In addition, the record suggests that complainants may be seeking relief beyond that recommended by the ALJ. Review of this case, therefore, will proceed in accordance with section 24.6 of 29 C.F.R.
Although a briefing schedule had been issued by order of June 25, 1987, neither party has submitted any filing addressing directly the findings of fact and conclusions of law in the ALJ's R.D. and O. Accordingly, each party may file, within 30 days of receipt of this order, a brief not to exceed 25 typed pages in support of or in opposition to the ALJ's R.D. and O. Each party may file a reply brief not to exceed 10 typed pages within 20 days of receipt of the opposing party's initial brief. Motions to extend these times are disfavored and will not be granted absent good cause shown. All briefs shall be submitted to the office of Administrative Appeals, U.S. Department of Labor, 200 Constitution Avenue, N.W., Room S-4309, Washington, D.C. 20210. Copies of all submissions shall be served on all other parties and their counsel.
SO ORDERED.
ELIZABETH DOLE
Secretary of Labor
Washington, D.C.
1 Neither party asserted in response to the show cause order that a settlement had been reached, although Respondent had contended earlier that the parties had settled this case. See order to Show Cause at 1.